Argued July 6,

decided July 19, 1910.

#### BEAN *v.*PETTENGILL.

[109 Pac. 865.]

Executors and Administrators — • Removal op Administrator — Grounds.

The court in proceedings to remove an administrator for misappropriation of the assets will not determine the truth of the charge, but where the evidence tends to show that the charge may be true, and where the circumstances show that some person should be in charge for whose interest it will be to cause the charge to be thoroughly investigated, the court will remove the administrator, especially where he had been interested as a tenant in common with decedent and was charged with wrongfully appropriating part of the property held in common.

From Josephine: Hiero K. Hanna, Judge.

Statement by Mr. Justice McBride.

This is a proceeding brought by Charles H. Bean, on behalf of himself, Eliza Chapman, and Dora L. Marshall, heirs at law of Charles H. Burton, deceased, to remove defendant as administrator of the estate of said deceased.

Defendant and C. H. Burton, deceased, were tenants in common of certain real property in Josephine County, which was occupied chiefly by deceased; and they were joint owners of certain cattle and other personal property. The petition charges that defendant has wrongfully caused the cattle, owned by himself and deceased, to be wrongfully appraised, and has failed to return a part of the property belonging to the estate of deceased, but *23claims it as his own. There are other allegations of misconduct and bad faith on the part of the administrator. All these allegations are denied by defendant.

A trial was had before the county judge, sitting in probate, who found for the petitioner, removed defendant, and appointed Bean as administrator. Defendant appealed to the circuit court, which reversed the county court and reinstated defendant. From that decision plaintiff appeals.

Reversed.

For appellant there was a brief and an oral argument by *Mr. Robert G. Smith.*

For respondent there was a brief and an oral argument by *Mr. H. D. Norton.*

Mr. Justice McBride

delivered the opinion of the court.

The evidence taken before the county judge is somewhat conflicting, and we do not think it proper to discuss it in detail, as it appears probable that the matters urged in the petition to remove defendant may hereafter become the subject of litigation. It is sufficient to say that there is some testimony to support the contention of the petitioner, and to indicate that the estate may have a *bona fide*claim against defendant, which cannot be litigated successfully while he remains administrator.

Without expressing any opinion as to the weight of the evidence adduced by petitioner, we are of the opinion that it discloses the fact that the apparent antagonism between the interest of the defendant and the heirs is such that he ought not to remain administrator, and that the county judge acted correctly in removing him. We do not wish to be understood as deciding that any charge of misappropriation of assets of the estate is true, because we do not conceive that such a question can be litigated in the present proceeding. We only hold that there is evidence tending to show that such charges may be true, and that, under the circumstances, some person should be *24in charge of the estate whose interest it will be to cause the alleged delinquencies to be thoroughly investigated.

The decree of the circuit court is reversed.

Reversed.